MISC 125144

May 9, 1990

Plymouth, ss.



The plaintiff in this action brought by William H. Wiseman of Hull in the County of Plymouth against James Yacobucci of said Hull seeks a Declaratory Judgment as to the location of the common boundary line between the property of the parties. The properties of the parties are perched on the top of a bluff which is slowly eroding as the Atlantic Ocean takes its revenge upon its abutters; rather than uniting against the forces of nature yet the parties concerns approximately a foot or two of land which divides the common boundary line as each would place it on the ground.

The sole issue before the Court is the proper location of the boundary line. A trial was held on January 23, 1990 at which a stenographer was appointed to record and transcribe the testimony. Witnesses were the plaintiff, the defendant, Theodore C. Perkins, a registered land surveyor, and an expert witness for the plaintiff, and Elmer C. Foster, a former owner of the plaintiff's property who was called by the defendant. There were twenty-two exhibits, some of multiple parts, introduced into evidence which are incorporated herein for the purpose of any appeal. A view was taken by the Court in the presence of counsel on April 24, 1990.

On all the evidence I find and rule as follows:

1. The defendant; James A. Yacobucci acquired title to the property known as 4 Bluff Road in said Hull by deed from John D. Beaton and Emilia Beaton dated July 13, 1972 and recorded with Plymouth Deeds Book 3796 Page 246. [Note 1] The recording references in this decision are to the Plymouth County Registry of Deeds.

2. The Beatons had acquired title in 1961 from Rose Perdicaro dated February 24, 1961 and recorded in Book 2834 Page 315 (Exhibit No. 19, the deed to Mr. and Mrs. Beaton being Exhibit No. 18).

3. The description in the deeds, at least from 1961, in the defendant's chain of title give the bearings for the two side lines of the lot. That from Bluff Road by land of the plaintiff is north seventy-nine degrees forty-three minutes fifty seconds East whereas the common boundary with the southern abutter is south seventy-nine degrees thirty-one minutes twenty seconds west.

4. The deeds in the defendant's chain specifically describe the property from Bluff Road to high water line of Massachusetts Bay whereas those in the plaintiff's chain describe the premises as metes and bounds only to the top of the Bluff although the description continues to the ocean and accordingly conveys the title of the original grantor so far as private ownership extends.

5. During his ownership Mr. Beaton had planted rose bushes between what was believed to be the property line in his home. There also were other shrubs and a garden in this area.

6. The deeds in the plaintiff's chain introduced into evidence set forth a bounding description in which bearings are not given. The description runs from Bluff Road, called a proposed street in the deeds to the edge of the Bluff. While the deed does not refer to it, there is a recorded plan of the property entitled "Land at Point Allerton, Hull, Massachusetts" dated September 25, 1889 by Frederic M. Hersey recorded at Book 784 Page 565 (Exhibit No. 5). It does not appear to be an "on the ground" survey, and it is of little assistance in resolving the dispute.

7. Several deeds in the plaintiff's chain of title came introduced in evidence as set forth in this paragraph. The deed from John J. Fallon to Elmer C. Foster and Joyce S. Foster is dated September 22, 1965 and recorded in Book 3240 Page 670 (Exhibit No. 8). The deed from Elmer C. Foster and Joyce S. Foster to Elmer C. Foster is dated March 22, 1978 and recorded in Book 4540 Page 278 (Exhibit No. 7). The deed from Elmer C. Foster to William H. Wiseman is dated August 29, 1979 and recorded in Book 4711 Page 438.

8. There are several plans which have been prepared either specifically to show the premises in dispute or which by happenstance do provide some enlightenment on the location of the boundary line. The first of these was prepared by Perkins Engineering, Inc. entitled "House location plan 10 Bluff Road, Hull, Massachusetts prepared for William H. Wiseman" dated August 3, 1987 (Exhibit No. 4). This is a topographic plan which shows the location of the plaintiff's house on the lot. The plan shows the existing sea wall or concrete retaining wall, three stone bounds at the two corners of the property at the street (one of which is at the beginning of the disputed line of Bluff Road) and at the northeasterly corner just before the bluff. An iron pipe and the fourth corner of the lot at the easterly end of the line here in dispute also is shown.

9. The defendant also had a plan prepared by one Henry A. Brawley which follows the bearings set forth in the deed to the defendant, shows the stone bound at the street end of the common boundary line between the parties with three stakes shown thereon stated to have been set by Mr. Brawley. The plan is entitled "Plan of land in Hull, Ma. owned by James A. Yacobucci" dated October 5, 1984 by Henry A. Brawley (Exhibit No. 9). It is not tied in to any other property so it is impossible to evaluate the correctness of the plan as it relates to the situation on the ground.

10. The Town of Hull in connection with an easement which it has taken to preserve the bluff commissioned the preparation of a plan by Perkins Engineering, Inc.; Sheet 2 of the four plans prepared for the Town shows the properties of the plaintiff and defendant (Exhibit No. 11). This plan is entitled "Easement Plan Allerton Bluff, Hull, Ma.", dated August 8, 1989 by Perkins Engineering, Inc." Sheet 1 thereof (Exhibit No. 10) shows the adjoining properties, and the tie in of Bluff Road to Standish Avenue, both of which are public ways.

11. There are numerous photographs which were entered as exhibits and which of the two properties in question, Exhibit No. 3 gives a clear view of the two houses, the plaintiff's being in the center of the photograph with an American flag flying from the widow's walk and that of the defendant to the left thereof. While this exhibit gives a general aerial view of the neighborhood with the riprap at the foot of the Bluff and the respective locations of the houses, it is not helpful on the question of locating the boundary line. Exhibit No. 14 which is taken in the opposite direction does show in the northeasterly corner of the plaintiff's property, and a white rectangle which marks the location of a former outdoor fireplace. The photograph also shows a wire fence parallel to the Bluff and the wooden fence originally erected by the plaintiff with the assistance of the defendant (Exhibit No. 14). Exhibit No. 21 shows the fireplace, itself and the wire fence with the gray white house in the rear being that of the defendant. The parties also have emphasized a tall wooden post which appears in several exhibits. It is unclear that this post is a boundary marker. During World War II the federal government apparently made a taking, whether the fee or an easement is not clear in this vicinity. The parties have assumed, and undoubtedly this is correct, that it was the government that put up the wooden post, but whether it was intended to be a property marker is uncertain. In any event, it appears on Exhibit Nos. 20, 20A, 22 and 1.

12. The plaintiff's predecessor in title testified that he and the then owner of the defendant's property placed the line between their respective lands by beginning on the street at the stone bound, the location of which no one has disputed and continuing the line in a straight direction to the point where the large post just referred to, the wire fence running parallel to the ocean and the corner of the fireplace converged. He further testified that the line did not necessarily follow the line of the plantings on the defendant's property, but that the plantings all were not on the plaintiff's land, but on that of the defendant. In some instances the plants may have strayed so that they were on the property line, but that the line generally was northerly thereof.

13. Sometime after the plaintiff purchased the property, he tried to erect a fence on the line between his land and that of the defendant. He chose a location which he believed to be within the property and solicited the defendant's help in completing the job as it was a difficult task for one person. The defendant suggested then or later that the line be surveyed, but the plaintiff assumed that he knew its location. The winds, however, in the neighborhood are so strong that the fence was blown down on three different occasions, and only a small portion of it remains standing. The further attempt to replace it led to difficulties between the parties and the institution of this action.

14. The plan prepared by Perkins specifically for the plaintiff has an error in the north arrow as shown thereon. Mr. Perkins traced this mistake to the early records of a former surveying firm purchased by his father, whose firm is now owned by him; the records tied in to a particular base line which must be corrected in working with it. The north arrow is correctly shown on the plan prepared for the work done by the Town of Hull.

The firm of engineers which prepared most of the plans introduced into evidence is very well regarded professionally. The error in the direction of the north arrow on Exhibit No. 4 illustrates, however, that no one is infallible. However, I do find and rule that the boundary line of record is as shown thereon and on Exhibit No. 11. Nonetheless, the plans do not show the evidence of occupation as it exists on the ground and as the respective owners of the two properties have recognized it for more than twenty years. This is not in truth a question of adverse possession, but a determination by the owners as to where their line falls on the ground. Today everyone agrees that it commences at the common stone bound on Bluff Road. I find and rule that it then runs easterly to the point where the corner of the former fireplace and the post erected by the government meet; and that this is the common boundary line as established by the parties.

The plaintiff filed proposed findings of fact, conclusions of law and an order, but I have not ruled specifically thereon since my decision is inclusive.

The Court recognizes that it may be difficult to recapture the line of occupation in years to come. Thus the Court suggests that the line be preserved by the placing of a stake and by offsets to the present houses. Perkins then should prepare a plan in form for recording, the expense to be shared by the parties; a boundary line agreement recognizing this line should be prepared by counsel and executed by the parties, to be recorded with the plan. This will alleviate future title problems for the litigants.

Judgment accordingly.


[Note 1] Both the plaintiff and the defendant hold title in their sole names without either wife being a party to the deed. This is highly unusual, and the Court refrains from commenting on the likelihood of a law suit such as this, to which there are no women parties, if title were held differently.